DOJ: Don't strike entire health law

The Obama administration on Friday told the Supreme Court that if the justices rule that the health reform law’s mandate is unconstitutional, they don’t need to get rid of the entire law.

Only two provisions — those requiring insurers to accept everyone regardless of health status and to apply “community rates” — must go if the mandate is knocked down, Justice Department lawyers wrote in a brief to the court.

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“Other provisions can operate independently and would still advance Congress’s core goals of expanding coverage, improving public health and controlling costs even if the minimum coverage provision were held unconstitutional,” Justice Department lawyers wrote.

It’s possibly the thorniest policy and legal question in the Supreme Court’s review of President Barack Obama’s health care reform law: If the mandate is unconstitutional, how much of the law needs to be eliminated?

The law’s opponents — 26 states and the National Federation of Independent Business — argue that the entire law needs to be wiped out if the mandate is struck. The government wants a much more narrow approach.

“The mandate to purchase health insurance is unconstitutional, and the health care law cannot exist if the Court strikes down the unconstitutional mandate that holds it together,” Karen Harned, executive director of the National Federation of Independent Business Small Business Legal Center, said in a statement Friday. “To argue otherwise would be like arguing a house can stand after its foundation has crumbled.”

But the Obama administration argued that the states and NFIB didn’t make a convincing argument that Congress would not have enacted any piece of the law without the mandate.

The states “have not come close to showing that it is evident that Congress would have wanted to undo every single one of the act’s myriad provisions — thereby denying affordable health care to millions of Americans and forgoing hundreds of billions of dollars in cost savings — if that one section were held unconstitutional,” Obama administration lawyers wrote.

The court is scheduled to hear oral arguments in the health care case over three days in late March.

This article first appeared on POLITICO Pro at 4:22 p.m. on January 27, 2012.